SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-261-94T1
DOLORES KELLY,
Plaintiff-Appellant,
v.
BALLY'S GRAND, INC. T/A BALLY'S
GRAND HOTEL/CASINO,
Defendant-Respondent.
__________________________________________
Argued November 9, 1995- Decided November 20, 1995
Before Judges Shebell, Wallace and Newman.
On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County.
Richard L. Press argued the cause for
appellant (Press & Long, attorneys; Mr.
Press, on the brief).
David W. Garland argued the cause for
respondent (Grotta, Glassman & Hoffman,
attorneys; Mr. Garland, of counsel; Mr.
Garland and Michael T. Bissinger, on the
brief).
The opinion of the court was delivered by
SHEBELL, P.J.A.D.
On March 12, 1993, plaintiff, Dolores Kelly, filed a complaint in the Law Division against her employer, defendant, Bally's Grand, Inc. (Bally). The first count alleged three age discrimination claims: (1) Defendant failed to promote plaintiff in July 1992 to the position of Reservations Manager;
(2) Ongoing age discrimination by plaintiff's supervisor, with
the intent to force plaintiff from her employment; and (3)
Unlawful retaliation against plaintiff for asserting an age
discrimination claim. The Second Count alleged a breach of
implied employment contract, later voluntarily dismissed by
plaintiff. Bally filed its answer on May 18, 1993, denying
plaintiff's allegations in their entirety. The parties engaged
in discovery, which included numerous interrogatories,
depositions, and documents, including witness certifications.
In June 1994, Bally moved for summary judgment on the claims
of age discrimination. Following oral argument on August 29,
1994, the Law Division judge granted summary judgment. Plaintiff
filed the within appeal, urging error in the granting of summary
judgment. We reverse in part and affirm in part.
Plaintiff was hired by the Golden Nugget Hotel Casino in
1983 as a Reservations Agent. In 1986 she was promoted to
Reservations Supervisor. In 1987 Golden Nugget was taken over by
Bally. Plaintiff continued in her position as Reservations
Supervisor, a position she presently holds.
In January 1992, plaintiff's superior, the Reservations
Manager, Colleen Farrell, left her position to go on maternity
leave. The Reservations Manager reviewed the position with
plaintiff prior to leaving and recommended that plaintiff apply
for the Reservations Manager position. According to the
Reservations Manager's affidavit, the directors of the hotel, Mr.
Perez and Mr. Kinee, knew that plaintiff became the acting
Reservations Manager. Plaintiff remained acting Reservations
Manager for seven months, from January 1992 to July 1992.
In April 1992, a job bid notice for Reservations Manager was
posted for employees of Bally. The minimum qualifications
included two to four years experience in reservations. According
to defendant's job-posting policy, all in-house employees who
apply for a position must be notified of the outcome of their
application. If no in-house candidates are identified, and the
hiring department wishes to recruit from outside, it is required
that a written request for advertising be sent to the Director of
Personnel. Bally expressed its policy on promotion as follows:
It is the policy of Bally's Grand to
encourage qualified employees to apply for
promotional opportunities and to grant every
consideration to qualified in-house
candidates first before recruiting from the
outside.
The policy also provides that where more than one qualified, in-house candidate has applied, preference should be given to length
of service in the department first, and then, if that is the
same, to the overall length of company service.
This policy was also espoused by Bally's vice-president of
operations, James Kinee, who stated that while he was sure that
it was company policy, it was also his policy
to always consider the in-house candidates
first. Because I believe that if you promote
from within, it makes the other people feel
better about working here. If you keep going
to the outside to fill positions, then that's
not good.
Plaintiff in her deposition testified that she was aware of
this policy, and that she prepared and distributed the necessary
job bid forms, and gave the paperwork to the secretary of the
Hotel Manager, Marvin Perez. According to Perez's secretary,
Diana Zucker, plaintiff gave her the application, and she
maintained it in a folder. Zucker stated further, that there
were two other in-house candidates who applied for the position,
but she indicated that neither held the requisite 24 years
reservations experience. Zucker states that she gave the files
to Perez and that he reviewed them with Kinee. Zucker then set
up interviews for Perez with the candidates, including plaintiff.
Zucker was actually at her desk outside of Perez's office, when
plaintiff came in for the interview.
Perez, who is no longer employed by Bally, states in his
certification that he received plaintiff's job application, and
interviewed all of the in-house candidates, including plaintiff.
After the interviews, he scheduled a meeting with Kinee, who was
to make the final hiring decision. Perez states that he brought
all of the applications, including plaintiff's, to Kinee's
office, and, during a meeting in late June, 1992, spoke to him
regarding all three candidates. Zucker also verifies that she
was aware of a meeting between Kinee and Perez in June, 1992, and
that she handed Perez the file, which included plaintiff's
application and other forms, and that he took the file and walked
toward Kinee's office. Perez maintains that Kinee and he spoke
about the fact that plaintiff had applied for the position and
that she had been serving as acting Reservations Manager. Zucker
further verifies that Perez, upon returning from the meeting,
told her that he and Kinee had spoken about all three candidates,
including plaintiff.
In contrast, Kinee states that he can only recall speaking
to Perez about one applicant, Sue Stevens. Kinee states that he
rejected Perez's recommendation of Stevens because she lacked
reservations experience. Kinee cannot recall if Perez showed him
any paperwork, but states with certainty that Perez did not show
him any paperwork regarding plaintiff. Kinee contends that he
suggested they look outside, as he preferred an outside candidate
because he wanted to upgrade the services in the Reservations
Department and improve interaction between Bally's various
departments. He asserted that he was not fully satisfied with
the department at that time.
In its answers to interrogatories, Bally stated that it had
no record that plaintiff formally applied for this position.
Kinee, in his deposition, states that he was not aware of
plaintiff's application until plaintiff questioned him regarding
why she had not been given the promotion, and he told her he was
unaware she had applied, and would look into it.
Zucker certifies that she dealt directly with Kinee after
Perez left Bally's employ, and that Kinee did go through the
Reservations Manager application file, in her presence, which
included plaintiff's application. Zucker maintains that Kinee
went through the file before making his decision on who was to be
hired as the Reservations Manager. She states: "I saw him
reviewing the Reservations Manager file, which included Dolores
Kelly's paperwork. He told me to hold onto the paperwork."
Kinee testified that as part of his job responsibilities,
prior to hiring the new Reservations Manager, he would walk
through the entire building several times a day, including the
reservations department. He was aware who the former
Reservations Manager was before she left, but claims that he did
not know who was serving in that capacity between the time she
left and the new Reservations Manager was hired. However,
according to Lenora Shockley, a former Reservations Supervisor,
plaintiff attended all staff and manager meetings, while
plaintiff was acting Reservations Manager, and Kinee knew who
plaintiff was and that she was the acting Reservations Manager
while Farrell was out.
Kinee interviewed several outside candidates for the
Reservations Manager position before hiring the 31 year old
Elizabeth Cooper for the position. Plaintiff then resumed her
former position as Reservations Supervisor. After Cooper took
over, some of plaintiff's duties were taken away. Cooper made
department changes, did some restructuring, and made work
schedule changes. During this time, Bally asserts that it was
"downsizing." Four members of the department were terminated,
all of whom were younger than plaintiff, and one of whom held the
same position as plaintiff.
Plaintiff's job evaluations under Cooper are alleged to be
lower than her evaluations under her former supervisor.
Plaintiff's merit raises, based upon those evaluations, are
alleged to have gone from an average of 5-6" to an average of
3.4" of her salary. According to Lenora Shockley, Cooper made
statements that she was trying to get rid of plaintiff, that
plaintiff was too old to work for Bally, that she wanted
plaintiff to retire, and that she was looking for anything to get
plaintiff fired. Shockley also contends that Cooper instructed
her that she did not want anyone beyond their 30's working in the
department, and that Cooper refused to hire two women Shockley
had interviewed for reservationist positions because they were in
their mid-forties. It is claimed that Cooper directly commented
to plaintiff regarding retirement on at least one occasion.
Plaintiff received at least two written reprimands from
Cooper in her personnel file. Cooper also commented that
plaintiff was inflexible in her work schedule, partly because,
she once noted, plaintiff's schedule had to accommodate for time
spent watching her grandchildren. However, after plaintiff filed
suit against Bally alleging age discrimination, plaintiff
acknowledges that Bally and Cooper have treated her nicely. She
states that she and Cooper have a professional relationship -
they are civil.
In granting summary judgment against plaintiff on her claim
of unlawful age discrimination due to defendant's failure to
promote plaintiff and hiring someone significantly younger, the
judge reasoned that he could not find facts sufficient to
establish a cause of action. The judge was wrong in this
conclusion.
New Jersey's Law Against Discrimination (LAD) makes it an
unlawful employment practice, or unlawful discrimination:
For an employer, because of the ... age ...
of any individual ... to discriminate against
such individual in compensation or in terms,
conditions or privileges of employment.
[N.J.S.A. 10:5-12(a).]
As in other employment discrimination claims arising under the
LAD, a multi-step testing procedure, involving burden shifting,
is to be applied to plaintiff's claim that she was passed over
for promotion on the basis of her age. See Waldron v. S.L.
Industries, Inc.,
849 F. Supp. 996, 1000 (D. N.J. 1994).
In Erickson v. Marsh & McLennan,
117 N.J. 539, 550 (1990),
our Supreme Court explained the initial analysis for LAD claims,
as follows: plaintiff must demonstrate that he or she: (1)
belongs to a protected class; (2) applied and was qualified for
the position for which the employer was seeking applicants; (3)
was rejected despite adequate qualifications; and (4) after
rejection, the position remained open and the employer continued
to seek applications for persons of plaintiff's qualifications.
Ibid. (quoting Andersen v. Exxon Co.,
89 N.J. 483, 492 (1982)).
Of course, these factors provide only a general framework and
must be modified where appropriate. Clowes v. Terminix
International, Inc.,
109 N.J. 575, 597 (1988).
The federal courts have articulated a specific test with
regard to age discrimination, which is helpful in analyzing
plaintiff's case:
[T]he plaintiff must prove by a
preponderance of evidence that he was (1) a
member of a protected class (here [or she],
persons aged forty to seventy), (2) qualified
for the position, (3) ... not selected for
[the] position, and (4) passed over in favor
of a candidate sufficiently younger to permit
an inference of age discrimination.
[Waldron v. S.L. Industries, supra, 849 F.
Supp. at 1001.]
Once plaintiff has passed the above four part test, and has
thereby established a prima facie case, discrimination is
presumed on the part of the employer, and the burden shifts to
the employer to articulate a legitimate, non-discriminatory
reason for the employment action. Ibid; see also McDonnell
Douglas v. Green,
411 U.S. 792,
93 S. Ct. 1817,
36 L. Ed.2d 668
(1973); St. Mary's Honor Center v. Hicks, ___ U.S. ___,
113 S.
Ct. 2742,
125 L. Ed.2d 407 (1993). If the employer articulates a
legitimate reason for its employment decision, the burden again
shifts to the plaintiff to show that the employer's articulated
reason was not the true motivating reason, but was merely a
pretext to mask the discrimination. Ibid.
Here, it is not disputed that plaintiff established a prima
facie case of unlawful age discrimination against Bally.
Plaintiff was a member of a protected class, age 64 at the time
she applied for promotion, and has provided clear evidence that
she applied for the position of Reservations Manager. The
certifications of Perez and Zucker support her assertion that she
filed a formal written application. Further, plaintiff facially
appears to have been qualified for the position. The job posting
notice stated a requirement of 2 to 4 years experience in
reservations, and she had been working in reservations for over
four years, and had actually been performing the duties of
Reservations Manager for over 7 months. Nonetheless, plaintiff
was rejected for the promotion, despite appearing to be qualified
for the position. Lastly, the position was filled by a person
who was age 31.
Having thus demonstrated a prima facie case, the burden
shifted to Bally, which articulated two facially legitimate
reasons for failing to promote plaintiff. The first was Kinee's
assertion that he had no knowledge of plaintiff filing any formal
application, and he maintains, as Perez recommended someone other
than plaintiff, he "never considered her so he could not have
considered her age a factor in the decision here, because he
never considered her." Second, is the assertion that,
unsatisfied with the Reservations Department and its interaction
with the rest of the hotel/casino operations, Kinee wanted to
look outside for a candidate who could bring changes to the
department.
We recently made the following observation as to how to
proceed once the employer has come forward with a legitimate non-discriminatory reason.
The legitimacy of [defendant's proffered
reasons] is not determinative of whether or
not summary judgment was appropriate on
plaintiff's [claim.] ... For purposes of our
review, we assume that this was a legitimate
non-discriminatory reason. Nonetheless, once
a defendant has met its burden of production
of a legitimate reason for the discharge, the
plaintiff is afforded the opportunity to show
that a discriminatory intent motivated the
defendant's actions, and not the legitimate
reason offered by defendant. [Jamison v.
Rockaway Tp. Bd. of Educ.,
242 N.J.Super. 436, 445 (App. Div. 1990)]. Plaintiff may do
this indirectly, by proving that the
proffered reason is a pretext for the
retaliation, or directly, by demonstrating
that a discriminatory reason more likely than
not motivated defendant's action. Id. at
445-47.
[Romano v. Brown & Williamson Tobacco Corp.,
___ N.J. Super. ___, A-5132-94T5 (N.J. App.
October 23, 1995), slip op. at 9.]
In this context the court in Fuentes v. Peskie,
32 F.3d 759
(3d Cir. 1994), stated:
The basic framework ... illustrates that, to
defeat summary judgment when the defendant
answers the plaintiff's prima facie case with
legitimate, non-discriminatory reasons for
its action, the plaintiff must point to some
evidence, direct or circumstantial, from
which a factfinder could reasonably either
(1) disbelieve the employer's articulated
legitimate reasons; or (2) believe that an
invidious discriminatory reason was more
likely than not a motivating or determinative
cause of the employer's action....
[T]o avoid summary judgment, the plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a factfinder reasonably to infer that each of the employer's proffered non-discriminatory reasons, ..., was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext). [To do so,] the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them "unworthy of credence,"... and hence infer "that the employer did not act for [the asserted] non-discriminatory reasons."
[Id. at 764-65 (citations omitted).]
We hold that plaintiff need not provide direct evidence that
the employer acted for discriminatory reasons in order to survive
summary judgment. She need only point to sufficient evidence to
support an inference that the employer did not act for its
proffered non-discriminatory reasons. See Josey v. John R.
Hollingsworth, Corp.,
996 F.2d 632 (3d Cir. 1993).
The United States Supreme Court in St. Mary's Honor Center
v. Hicks, supra, ___ U.S. at ___, 113 S. Ct. at 2742, 125 L.
Ed.
2d at 416, articulated the ultimate standard of proof on an
employment discrimination claim at trial. Once the prima facie
case is set forth, and the legitimate reasons articulated, the
presumption of discrimination drops out. Ibid.
The plaintiff then has "the full and fair
opportunity to demonstrate," through
presentation of [her] own case and through
cross-examination of the defendant's
witnesses, "that the proffered reason was not
the true reason for the employment decision,"
... and that [age] was. [She] retains that
"ultimate burden of persuading the trier of
fact that [she] has been the victim of
intentional discrimination.
[Ibid. (citations omitted).]
It is not the holding of St. Mary's, supra, that plaintiff must
meet this ultimate burden of persuasion on a summary judgment
motion. We conclude that here it was sufficient to overcome
summary judgment that plaintiff cast such serious doubt on the
veracity of Bally's articulated legitimate reasons as to allow a
jury to reasonably conclude that Bally was motivated to act for
the discriminatory reason alleged by plaintiff. Romano, supra,
___ N.J. Super. at ___, slip op at 9; see Brill v. Guardian Life,
___ N.J. ___, ___, A-123-94 (N.J. Oct. 24, 1995).
In the present case, plaintiff has presented a genuine issue
as to the veracity of her employer's purported legitimate
reasons. Kinee's assertion that he cannot recall whether other
names including plaintiff's were mentioned by Perez, and that
Bally has no record of plaintiff filing a formal application for
the position are suspect. Clearly, the record could support a
finding that Kinee saw plaintiff's application, was aware of
plaintiff's role as acting Reservations Manager; and discussed
plaintiff's application with Perez. Thus, the record indicates
that Bally received and knew of plaintiff's application, but did
not articulate a reason for failing to promote her as required by
Bally's policy.
Plaintiff also established enough of a dispute as to Bally's
second articulated reason, as well. The second reason advanced
for failing to promote the plaintiff is based on Kinee's belated
assertion that he wanted to hire someone from the outside because
he was not satisfied with the department. The evidence, again
taken in a light most favorable to the plaintiff, establishes
that this reason is likewise suspect. As stated, Bally did not
comport with its own policies on outside hiring, as it did not
provide plaintiff with a reason for passing her over for
promotion. Moreover, Bally never articulated in its answers to
plaintiff's interrogatories, that there was a desire to hire
outside the company because of dissatisfaction with the present
department management. It was at his June 1994 deposition, that
Kinee asserted for the first time that he was dissatisfied with
the department. It strains credulity that a superior unsatisfied
with a subordinate department would passively allow the problem
to continue without so much as a discussion or letter to the
acting manager, or at least finding out who was in charge.
We agree that to ultimately prevail, plaintiff must prove
that discriminatory intent motivated her employer, even if all of
Bally's proffered reasons have been discredited, as it is not
enough merely to discredit the reasons. St. Mary's, supra, ___
U.S. at ___, 113 S. Ct. at 2742, 125 L. Ed.
2d at 418.
Nonetheless, although the trier of fact is not compelled to find
for plaintiff "[t]he factfinder's disbelief of the reasons put
forward by the defendant (particularly if disbelief is
accompanied by a suspicion of mendacity) may, together with the
elements of the prima facie case, suffice to show intentional
discrimination." Ibid; see E.E.O.C. v. MCI Intern., Inc.,
829 F.
Supp. 1438, 1451 (D. N.J. 1993). Applying the Brill standard for
summary judgment, we conclude that after weighing the evidence
relating to the material facts, a genuine issue exists. Brill,
supra, slip op. at 11, 16.
Plaintiff also argues that the judge improperly dismissed
that part of her complaint that alleges Bally, through its new
Reservations Manager, Elizabeth Cooper, engaged in age
discrimination by altering the terms and conditions of her
employment. Plaintiff asserts that in fact there is sufficient
evidence of age bias and animus directed against plaintiff by her
supervisor, Elizabeth Cooper, in violation of the LAD's
prohibition of discrimination based upon age to withstand summary
judgment. N.J.S.A. 10:5-12(a).
Plaintiff points to the affidavits of Leah Jones that Cooper
commented to Jones in August of 1992 that she wanted to "get rid
of [plaintiff] and get some young people in here." She couples
this with the evidence that her performance evaluations went from
excellent under her former manager to merely satisfactory under
Cooper, and that because merit raises are directly related to the
evaluations, her raises decreased under Cooper.
Plaintiff asserts that the sexual harassment-hostile work
environment analyses/case law does not apply to age
discrimination. We find no reported case law dealing directly
with an ongoing claim of age animus in the workplace in our
jurisdiction.
Under a hostile work environment analysis, as modified to
fit an age animus claim, plaintiff would have to establish that:
(1) the complained of conduct would not have occurred but for
her age; (2) the conduct was severe or pervasive; (3) enough
to make a reasonable older aged person (64 year old person)
believe that; (4) the conditions of employment have been altered
and the working environment is hostile or abusive. See Lehman v.
Toys `R' Us, Inc.,
132 N.J. 587, 603 (1993).
We are convinced that the evidence of age based statements
of bias aimed at plaintiff by her supervisor, together with the
evidence of poorer evaluations and written reprimands given by
Cooper to plaintiff sufficiently raise an inference of age
discrimination under LAD. The consequences of Cooper's alleged
bias, whether evaluated in terms of hostile environment or the
basis of their direct consequential harm to the plaintiff, are
sufficient to permit plaintiff to continue her cause of action.
We recognize that Cooper may only be a tougher boss than Farrell;
however, she may also treat plaintiff more harshly than the
others because of the bias motives alleged to have been expressed
against plaintiff. We conclude that plaintiff has made out a
prima facie case and it is for her employer to show that Cooper
treated plaintiff no differently from her co-workers.
Lastly, the LAD prohibits employers from retaliating against
employees for engaging in a protected activity under the act.
N.J.S.A. 10:5-12(d). Plaintiff engaged in a protected activity
when she pursued her claims of age discrimination. However,
plaintiff's own admission, that since she filed the lawsuit Bally
and Cooper have not treated her improperly, supports dismissal of
her retaliation cause of action.
Any actionable conduct appears to have occurred prior to and
not in retaliation for plaintiff's claims of discrimination.
Summary judgment was proper under the present test enunciated by
our Supreme Court in Brill, supra, which requires a judge ruling
on a summary judgment motion to engage in a weighing process to
find out if a genuine issue of material fact exists, a process
essentially the same as that of a directed verdict. Id., slip
op. at 11, 16, 19-20. The essential issue is "whether the
evidence presents a sufficient disagreement to require submission
to a jury or whether it is so one-sided that one party must
prevail as a matter of law." Id. slip op. at 20 (quoting
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52,
106 S. Ct. 2505, 2512,
91 L. Ed.2d 202, 214 (1986). We, therefore, affirm
the dismissal of plaintiff's retaliation claim.
We reverse the Law Division's dismissal of plaintiff's claim
for failure to promote and her claim based on ongoing
discrimination. We affirm the granting of summary judgment on
plaintiff's claim for retaliation.